Mansbach Scrap Iron Co. v. City of Ashland , 235 Ky. 265 ( 1930 )

Municipalities in this country have no such right as inherent police powers. 43 C. J. 205, sec. 204. Whatever authority they may exercise under that elastic and undefinable thing denominated in the law "Police Power" must be derived from the Legislature or Constitution within the jurisdiction or sovereignty where they are located. Therefore whatever police power the city of Ashland possesses must be found to emanate from its charter, and I agree with the opinion that it has authority under such power to regulate junk dealers. But, as stated in the opinion, it does not have the authority under that or any other power to prohibit entirely the carrying on of the business of a junk dealer. The police power when and wherever it exists may be exercised by two methods, one of which is "The regular municipal method of exercising police functions is by the enactment of ordinances, of regulation or prohibition, the former usually prescribing fees and licenses." 43 C. J. 248, sec. 248. The exercise by that method usually applies to existing subjects of regulation and takes the form of an ordinance imposing permissible restrictions and burdens on the subject or business regulated.

To make a concrete illustration of the present case: If the city of Ashland had ordained that, "It shall be unlawful for any junk dealer within the corporate limits of the city of Ashland to refuse any peace officer the right to search his premises wherein his business is conducted without a search warrant," and had then fixed a penalty for such refusal, the above first method of exercising authority under the police power now under consideration would have been followed; but I feel sure that none of my brethren, who joined in and agree with the majority opinion, would for a minute contend that such an ordinance would be valid. However, if I should be mistaken and they would so agree, then my research confirms the fact that they would be the only members of a court of last resort who did so agree. In section 226, p. 225, same volume C. J., it is stated: "Municipal powers are subject to limitations of both the federal and the state constitutions. The legislature cannot delegate to a municipal corporation a power violative of constitutional provisions. A municipality can neither deny norabridge any of the rights protected by the constitutional guaranties, it may not pass any ex post facto ordinance; nor any ordinance which violates the obligation of contracts; nor regulate interstate commerce; nor deprive any person of life, liberty, or property without due process of law; nor confiscate property of one person for another's benefit; nor take private property without just compensation. It cannot make the exercise of a constitutional right subject to the discretion of municipal officials. A city council may not authorize a railroad company to take or injure private property. Whatever the state is forbidden to do is of course equally prohibited to its creature, the municipal corporation. Also, whatever private rights of person or property the people of the state have specially guaranteed or protected by their bill of rights or state constitution against infringement by any power are beyond the reach of municipal authority; and whatever acts they have prohibited the state government from doing are equally prohibited to municipal government."

The next section, on page 226, says, inter alia: "The police powers of a municipal corporation falling as they do within the rules just discussed must be exercised subject to provisions both of the state and of the federal constitutions, . . . and hence, so long as municipal bodies confine their enactments within the proper limits of such power, they do not violate the private rights of the individual. The limit imposed is that the requirements, whatever they may be, must be reasonable," etc. Every text-writer and every opinion of every court that I have been able to find on the subject would therefore say that an ordinance, of the nature and character of the above-supposed one, would be absolutely void as violative of a most sacred right of the citizen, guaranteed to him by section 10 of our Constitution, forbidding searching of one's person, houses, papers, and possessions without a warrant therefor, based upon probable cause supported by oath or affirmation. That guaranty is a part of our Bill of Rights and is, at least, as much sacred as any other guaranteed right by the Constitution. It was not only intended to guarantee one's privacy, at least as applied to his dwelling, but it was also intended to guarantee immunity against furnishing evidence against himself, a right guaranteed by section 11 of the Constitution, which is also a part of our Bill of Rights.

I will not undertake to elaborate or even cite the great number of texts, opinions, articles, and other sorts of publications extolling the constitutional guaranty against unreasonable seizures and searches. It is sufficient to say that the excerpts from Corpus Juris find unanimous approval in all of the publications referred to and there exists no opposing ones. I repeat, then, that the supposed ordinance would be invalid for the reasons stated.

The other and second method by which a municipality may function in the exercise of its police power is by imposing a system of license taxes, or regulatory permits, to engage in the particular business proposed to be regulated and dealt with. It looks to a complying with a condition precedent to the embarking in the regulated business, while the first method supra lays its hands upon an already existing business, and directly forces its regulating provisions upon it. Both methods are for the accomplishment of the same purpose, and the authority of the municipality to employ them emanates from the same source, to wit, the police power. I therefore would like to inquire: Wherein is the distinction between the two methods so far as the constitutional right of the municipality to employ them is concerned? The one seeks to directly violate section 10 of our Constitution; while the other seeks to accomplish the same purpose but indirectly with the aid of a coerced agreement as a condition precedent to entering into the proposed business by the applicant whereby he under duress surrenders the same guaranties furnished him by the same section of the Constitution. The latter, to my mind, is more iniquitous and embodies a less excusable intent to violate the Constitution than does the first method. We often read in the law books that, what a person, a state, or a municipality may not do directly is likewise forbidden to be done indirectly, and to my mind the ordinance involved in this case is one of the most glaring attempts to pursue the indirect method of violating a constitutionally guaranteed right that has come under my observation.

I agree that under the term "regulation" many things may be done and requirements exacted for the benefit and protection of the public at large, but always limited by the requirement that the exactions must be reasonable and proportioned to the evil sought to be overcome, and which the opinion expressly approves, and it is in conformity with all opinions and writers upon the subject. But the trouble with the opinion, according to my view, is that it loses sight of the boundary line of "reasonableness" when it permits a municipality to exact as a condition precedent to engaging in a lawful business, though subject to regulation under the police power, a coerced agreement that the applicant shall consent to a search of his place of business by policeofficers without a search warrant and which is in direct defiance of the guaranties contained in section 10, supra, of our Constitution. I have not overlooked that in the annotations to the case in 30 A.L.R. 1427 (referred to in the opinion) a number of what might be termed stringent regulations and conditions may be imposed upon one engaged in the junk dealing business, some of which are enumerated in the opinion, and they are: That the applicant obtain the consent of a designated number of adjacent property owners; that he agree for a revocation of his license upon certain infractions; that his business be barred from certain localities, or, in other words, zoned; that he be required to keep records of certain transactions not difficult to do, and furnish them periodically to designated peace officers; that his hours of business be limited; that he should not deal with infants, etc.

But the opinion overlooks the important and controlling fact that none of the exactions in any of the cases is in contravention of any guaranty found in the Constitution. All of them clearly come within the reasonableness of a regulation adapted to the particular business. If, for instance, the Constitution contained a provision against zoning certain classes of business, or against exacting consent of neighbors to transact business in a particular locality, or against any other of the restrictions that have been upheld (and some of which are cited in the opinion), then I have no doubt that the annotated opinions would have been written differently from what they were.

If the condition here involved is legitimate as not transcending the limits of a valid exercise of the police power, then the city of Ashland could likewise require, as a condition precedent to granting any license to any business that may be so regulated, that the applicant should waive in advance his immunity from furnishing evidence against himself as contained in section 11 of the Constitution by forcing him to execute a coerced agreement to testify against himself if he should be apprehended on a charge of receiving stolen property; or, if he should be apprehended for violating the ordinance or for any other discovered offense growing out of the conducting of his business, that he would waive a jury trial guaranteed to him by section 7 of the Constitution, and submit his case to a court having jurisdiction. If there is any distinction between the supposed cases and the actual one we have it is, to my mind, so thin and shadowy that it fades into invisibility, and the same remark may be made as to the supposed distinction between the first and second methods, supra, of exercising the police power.

The modern tendency, I regret, seems directed towards the making of inroads upon constitutional guaranties and protections, and, bit by bit, they are being eaten away, and the most unfortunate part of it is that the processes by which it is done have even received the approbation of many courts, which are the last bulwark for the salvation and protection of such sacred rights, both to the individual and to society in general. For one, I deplore it and view the outlook with alarm and believe that the time has come when a firm stand should be taken, not only against any advance in such encroachments, but to remedy as much as possible what has already been done in that direction. In so saying I do not mean to advocate any limitations upon the legitimate exercise of that influential, undefinable, and comprehensive doctrine of the law, known as the "police power;" but I do mean to say that I am in favor of confining it within statutory and constitutional limitations and to not enthrone it above and superior to either. In other words, I am in favor of employing and applying the police power within its declared and settled limitations, but I am opposed to crowning it, in the realm of the law, as "Lord of all."

I therefore most respectfully dissent, and I am authorized to say that Judge LOGAN joins me in doing so.